The Constitutional Court recently handed down its much-anticipated judgment in Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill [2026] ZACC 26, marking a significant development in South Africa’s copyright law reform process.

In a decision that will have far-reaching implications for copyright owners, creators, educational institutions, publishers and other stakeholders, the Court found that key provisions of the Copyright Amendment Bill are unconstitutional. As a result, neither the Copyright Amendment Bill nor the Performers’ Protection Amendment Bill can be enacted in their current form.

What the Court decided

At the heart of the judgment were sections 12D(1)–(5) of the Copyright Amendment Bill, which proposed broad exceptions allowing the reproduction of copyright-protected works for educational and academic purposes.

The Constitutional Court found that these provisions are inconsistent with the Constitution and therefore invalid.

Importantly, the Court reaffirmed that copyright constitutes a form of property protected by section 25(1) of the Constitution. It held that the proposed educational and academic exceptions were drafted too broadly and lacked sufficient safeguards, potentially undermining the normal commercial market for copyright works. In the Court’s view, this would result in an arbitrary deprivation of property rights.

Not all provisions were rejected

While the ruling presents a setback for the Bills, the Court did not strike down all the provisions referred for constitutional review.

The proposed fair use exception contained in section 12A, together with the exceptions provided for in sections 12B, 12C, 12D(6)–(9), 19B and 19C, were found to be constitutionally compliant within the scope of the President’s referral.

This aspect of the judgment provides valuable guidance for lawmakers as they consider the next phase of the legislative process.

What happens next?

The immediate effect of the judgment is that there is no change to the current legal position. The existing Copyright Act and Performers’ Protection Act remain fully in force, and the proposed amendments have not become law.

Before any changes can take effect, the Bills must return to the legislative process for reconsideration and amendment in line with the Constitutional Court’s findings.

What stakeholders should be doing

Although the legislation has been delayed, organisations that may be affected by future copyright reforms should continue to monitor developments closely.

Businesses and institutions that rely on copyright-protected content, including copyright owners, publishers, collecting societies, educational institutions, broadcasters, software developers and other content-driven organisations, should remain alert to potential changes that may affect:

• Licensing arrangements
• Educational and training materials
• Digital content access and distribution
• Archiving and preservation practices
• Platform and user-content policies
• Copyright compliance and risk-management strategies

The judgment also leaves open the possibility of future constitutional challenges once revised legislation is enacted and its practical impact can be assessed.

How KISCH IP can assist

KISCH IP advises clients on all aspects of copyright, trade marks and intellectual property law, including portfolio management, licensing, enforcement, commercialisation and rights-protection strategies.

For further information or tailored advice regarding the implications of this judgment, please contact marketing@kisch-ip.com.